1. It is relevant to mention here to make out that what is meant that necessary
Party?
In this regard it is to submit that the true meaning of Necessary Party is “TO AN ACTION IS ONE WITHOUT WHOSE PRESENCE A SUBSTANTIAL DECREE CANNOT BE MADE” a party without impleading whom, a claim cannot be legally settled by court. (Order 31 Rule 13(1) of Code of Civil Procedure. Actions in equity, Proper parties are those without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy , and conclude the rights of all persons who have any interested in the subject matter of the litigation.; while necessary parties are those without whom no decree can be effectively made.( Law of Lexicon Page 1287)
JOINDER OF PARTIES: the joining of several parties as plaintiffs or Defendants in the same suit or action. The joining of all of or any of those persons as plaintiffs or defendants in whom the right to any relief is alleged exist, or who is alleged to posses any interest in the subject matter of litigation or who in the view of the court, is a proper or necessary party for the adjudication.( Order 1 Rule 6 of Code of Civil Procedure)
2. Order 1 Rule 10 of Code of Civil Procedure enables the court to add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of said provision. (Swamiji of Mutt, represented by his power attorney Holder, filed suit for partition. During pendency of suit Swamiji Died. Successor of the Mutt filed I.A.366/93 to implead him as plaintiff, as the power of attorney Holder of previous Swamiji has played fraud and sold way the property of Mutt without any authority. Purchasers claiming rights in the suit property filed I.A.586/90 to be impleaded as successors after the death of Previous Swamiji. Court below impleaded Successor of Mutt as 81st defendant and purchasers as plaintiffs 2 to 5. CRP 1456/95 by Successor of Mutt and CRP 1350/95 by purchasers. Held Successor of the Mutt has challenged the alienations made by power of attorney Holder, Successor of the Mutt and the persons, who purchased the property of the Mutt from power of attorney Holder, are necessary and proper parties without whose presence adjudication of title cannot be made. Question of impleading power of attorney Holder in the place of previous Swamiji does not arise, as the power of attorney has come to an end after the death of executant. Lower court went wrong in directing successor of Mutt to be impleaded as 81st defendant and purchasers as plaintiffs 2 to 5. Successor of Mutt ought to have been impleaded as Successor of Plaintiff and purchasers as defendants. Lower court shall permit parties to carry out amendments in the light of order passed. Revision Petitions partly allowed.) Reported in ALT (1) 2003 at 395.
3. ORDER 1 RULE10 Impleading application -By the revision Petitioners to
Implead themselves as defendants in a pending suit for declaration rejected by the
Trial Court--On facts, Held-On an application under Order 1 Rule 10 Court is
Required to investigate the fact that the applicant should be necessary to enable the
Court to effectually and completely to adjudicate upon and settle all the questions
involved in the suit. And the Court has to find out that the impleadment is
Necessary to avoid multiplicity of proceedings--Since the Trial Court has
Completely Over-looked these facts -order of the Trial Court is set aside.
4. What is required to be investigated when an application under Order 1 Rule 10 of the Code of Civil Procedure is filed before the Court is "whether the presence of a person before it may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit."The Suit of the plaintiff is for a Declaration that they are the exclusive owners of the temple and have exclusive archakship rights. On the other hand, the impleading applicant also claims right over the temple and archakship. Under the circumstances, the presence of the impleading applicants is necessary to completely adjudicate the nature of the rights of the parties over a temple and archakship. If they are not ordered to be imp leaded, they have to file another suit for declaration of their Rights which would necessarily mean there would be multiplicity of proceedings. Hence, they are both necessary and proper parties to the suit.
5. In my view, the Trial Court has totally misdirected about the scope of Order 1 Rule 10 of the Code of Civil Procedure. What is required to be investigated when an application under Order 1 Rule 10 of the Code of Civil Procedure is filed before the Court is "whether the presence of a person before it may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit". The Trial Court has not applied its mind to this aspect of the matter. It has proceeded to investigate the merits of the claim made by the impleading applicants. That stage will reach only when the applicants are
Impleaded and during the final hearing of the matter while adjudicating their rights.
6. necessary party . a person or entity whose interests will be affected by the outcome of a lawsuit, whose absence as a party in the suit prevents a judgment on all issues, but who cannot be joined in the lawsuit because that would deny jurisdiction to the particular court (such as shifting jurisdiction from a state to federal court). In this rare technical situation, a necessary party who is not in the suit differs from an "indispensable party," who must be joined if the lawsuit is to proceed, and from a "proper party" who could be joined but is not essential.
7. deals with permissive joinder of parties. The plaintiff has the option whether to join a party if the tests of Rule 20 are met. Rule 10 of Order 1 applies to joinder of both plaintiffs and defendants. It creates two tests for joinder. 1) There must be some question of law or fact common to all parties which will arise in the action. 2) There must be some right to relief asserted on behalf of each of the plaintiffs and against each of the defendants, relating to or arising out of a single transaction or occurrence or series of transactions or occurrences. These tests are cumulative and both of them must be satisfied to permit joinder. The purpose of Rule is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.
8. Impleader seeks to assert a claim against someone who is not already a party to the action. It must involve a transfer of liability based on the plaintiff's original claim. Impleader of a third party because he is directly liable to the plaintiff in the original action is forbidden. E.g., a defendant sued for negligence cannot implead a third party whose negligence was totally responsible for plaintiff's injury.
9. Rule 10(2) of Order 1 makes very generous provision for impleading third parties and for assertion of claims on all three sides of the resulting lawsuit. While a great deal is thus procedurally proper, the limitations of jurisdiction do not always permit claims to be freely asserted.
10. The standards that a court should apply in determining whether a lawsuit should go forward in the absence of a necessary party. It consists of a four part test. (1) the court must determine whether "a judgment rendered in the person's absence might be prejudicial to him or those already parties" (2) Whether the court can reduce or eliminate prejudice by "the shaping of relief or other measures." (3) whether the judgment rendered without the outsider will be "adequate." (4) the court must consider the costs to the plaintiff of a dismissal for nonjoinder.
11. The Apex Court of India in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import – 1981 (1) SCC 80, reiterated the classic definition of ‘discretion’ by Lord Mansfield in R. vs. Wilkes – 1770 (98) ER 327, that ‘discretion’ when applied to courts of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, ‘but legal and regular’. We may now give some illustrations regarding exercise of discretion under the said Sub-Rule.
12. The government enjoys no immunity in so far as civil suits are concerned. If the government issues a notification, against which the plaintiff chooses to file a suit, the government shall also be a necessary party. In suits that are filed against a public officer, for damages or for any other relief, in respect of an act done by him in official capacity, the government will also be a necessary party.
13. In General Manager, South Central Railway, Secunderabad v. AVR Siddhantti, there was a non-joinder of parties. The plaintiff claimed relief against the Railways by impleading it through its representatives. The appellants contended that the employees who were likely to be affected by the decision had not been impleaded. Further, it was contended that since they were necessary parties, their non-joinder was fatal to the petition. However, the Supreme Court turned down this preliminary objection, holding that the relief was being claimed against the Railways only and it had been impleaded through its representative. Employees who were likely to be affected by the decision were at best proper parties. Their non-joinder could not be said to be fatal to the petition. This supports the proposition that a necessary party is one against whom relief is claimed. Those who are likely to be affected by the decision of the court do not automatically become necessary parties. The court may adjudicate upon their rights and liabilities, but their presence is not needed to pass an order. The purpose of any civil suit is to grant relief to the plaintiff whose civil rights have been infringed. Therefore, adjudication upon rights and liabilities of parties should be done only to that extent. However, anybody whose interest is likely to be directly affected by the decision of the court is a necessary party. But this means such a person should be called upon to bear the relief claimed by the plaintiff.
Therefore in the light of above case law, the Petitioner is necessary party to the entire proceedings of the suit and if he is impleaded as defendant to enable the Honourable court to effectually and completely to adjudicate upon all the questions involved in the suit, and that the Court has to find out that the impleadment of the petitioner as one of the defendant in the main suit and as Respondent in Injunction Petition filed by the Respondent to avoid multiplicity of proceedings.